How Society Can Implement Voluntary
Physician Euthanasia

The British Columbia
Civil Liberties Association
(www.bccla.org)
has presented the main arguments that have
been used by those who have thought seriously
about the time when the law will permit
one person to assist another person in voluntarily
ending their life. There was one broad
conclusion from this review. The law as
it currently stands unjustifiably prohibits
individuals from offering forms of
assistance that ought to be available to
people who have made deliberate and rational
decisions to end their own lives. This issue
involves a central principle of civil liberties,
supported by a reasonably broad social consensus. We
also noted that there are good reasons for
retaining some legal limits on the kinds
of situations in which assistance can be given
to those who express a desire to end their
own lives. Again, it is our view that at
least some such limits can be identified
as a matter of both principle and social
consensus, though it is much more problematic
to specify the exact point at which broad
social consensus about particular issues
of principle begins to dissolve. A
point of further clarification is useful,
however, before we go on to address the
implications for public policy of these
views. We are not asserting that general
dissatisfaction with the current state of
the law can be translated easily into a
comparable degree of support for any
particular measure that might be chosen
to replace the current law. But we are confident
that the current state of the law does
not permit a proper response to legitimate
demands for lawful assistance in suicide.
The law should be changed to accept
the legitimacy of that demand, however difficult
the process may be. The following information
is based on an excerpt from a 1994 executive
summary on assisted voluntary euthanasia
and other end of life decisions of the British
Columbia Civil Liberties Association.

Broadly speaking, there
are three approaches that can be taken to the
creation of space for some forms of assistance
to individuals who have decided to end their own
lives.

a.

To maintain the current state of the law
as a matter of form but to ensure, as a
matter of practice, that the law will
not be enforced in certain types of
situations, although presumably the law
would be enforced in other situations.

b.

To change the law to create either a
defense to criminal prosecution or, less
satisfactorily, to reduce penalties for
certain types of assistance to those who
wish to end their own lives in
appropriate circumstances.

c.

To adopt a broader regulatory approach
to the problem of striking the balance
between the need to create space for the
legitimate provision of assistance
in suicide and the need to prevent the
abuse of this opportunity, particularly
as it affects vulnerable individuals.

It is our view that the
first approach is very significant flawed and
that the second, while deserving of some
attention, remains unsatisfactory. We will
briefly set out our reasons for this view, and
then go on to outline the considerations that
need to be addressed if a workable regulatory
scheme is to be implemented. Although we will
identify what we believe are the issues that
have to be addressed in the creation of a
regulatory scheme, we will not seek to make
recommendations on which choices are most
appropriate, since we see that as being the
subject of a separate paper.

We start with the
observation that, on the surface at least,
selective enforcement of the current legal
prohibitions on assisted suicide seems to
represent the current state of affairs. As long as official policy
on the exercise of prosecutorial discretion acknowledges
the legitimacy of the current law, there will be ongoing
pressure to prosecute people who provide assistance in suicide
even if the government would prefer, as a matter of policy, not
to prosecute at least some of the people who are providing
such assistance. The uncertainty of this situation will
inevitably mean that some people who would be prepared
to provide suicide assistance in appropriate circumstances
will be unwilling to do so because of the fear of prosecution.
In turn, such assistance for those who have a legitimate
need for it is likely to be restricted or, at best,
very uneven. Moreover, when a blind eye is
turned to assisted suicide and active voluntary euthanasia
despite official proscription, it is impossible to
prevent abuses.

If those who are well qualified
to provide effective suicide assistance are unwilling to
do so, their place is likely to be filled in some instances
by well-meaning but incompetent individuals who will actually
increase the suffering of those who wish to end their lives. We
are then faced with the dilemma of either prosecuting these
individuals, thereby enhancing concerns about the risk of prosecution
in the minds of those who are qualified to provide such
a service competently, or recognizing, in effect, the law's
inability to prevent the harms flowing from the incompetent
provision of suicide assistance. In addition, and perhaps
most importantly, this either/or approach prevents individuals,
or society, from addressing in a rational way the proper
limits that should be placed on assisted suicide.

One
way of addressing these difficulties would be
for the Attorney General to abandon any pretense
of enforcing the current law and overtly engage
in an exercise of announcing under what
conditions assisted suicide will be prosecuted
and under what conditions the current laws will
not be enforced. This approach raises several
easily identified problems, both for citizens
and for the federal government. From the point of view
of citizens, as long as a criminal law is in place, an assurance
from the Attorney General that prosecutions will not
take place offers insufficient assurance for those who are
prepared to provide suicide assistance, thus failing to
alleviate the concerns raised above.

There are two broad approaches to providing defenses
against criminal prosecution in cases of assisted suicide
or voluntary active euthanasia. (1) The first
approach is to provide an absolute defense to a criminal
charge in a defined set of circumstances. (2) The
second is to mitigate the penalties associated with the
offence in a defined set of circumstances, either by creating
a new offence that incorporates what are perceived
to be mitigating factors and attaching lesser penalties
to that offence, or by allowing the mitigating factors
to influence judicial discretion in sentencing. The fundamental
difference between these two approaches is that the
first concedes that what was done was not wrong as a matter
of law, whereas the second retains the notion of wrongfulness
but concedes that the nature of the wrong is not as serious
as it might be in other circumstances.

Our
difficulty with the second variation is that it seems to
us highly problematic to make a determination that assisted
suicide or voluntary active euthanasia, when done in
an appropriately limited range of situations, ought to be
considered wrong as a matter of law. Killing in self-defense
is not deemed to be wrongful, even though one may regret
the death of the person who was killed and even though
one may justifiably be cautious about expanding the range
of situations that can be defined as permitting killing
in self-defense. In our view, therefore,
the mitigation approach does not address the legitimate
need for legal space in which appropriately limited acts
of assisted suicide and voluntary active euthanasia can
take place. Accordingly, we will not explore this option
further, but will turn to the creation of a full defense
to criminal prosecution for certain acts of assisted suicide
and voluntary active euthanasia. In one respect,
this type of defense has to be integrated into the regulatory
scheme we propose under the third option set out below.
Since we recognize the potential for serious abuse of assisted
suicide and voluntary active euthanasia, it is necessary
to retain serious penalties for such abuses. What is needed, therefore, is a vehicle for drawing
reasonably clear distinctions between situations in which
we are prepared to accept the practice of assisted
suicide and voluntary active euthanasia from those situations
in which such. The fundamental difference between the
use of a criminal defense to establish that boundary and
the use of a regulatory approach is that the regulatory
approach seeks to provide an individualized determination
of whether the necessary conditions have been met in advance
of any action being taken to end a person's life, whereas
the criminal defense approach makes that individualized determination
only after the fact, in the context of a criminal prosecution
carries substantial penalties.

In our view,
it is better to make advance determinations in individual
situations rather than after the fact determinations. First of all, the prior authorization provides a higher
level of comfort for those in suicide assistance or voluntary
active euthanasia. As a consequence, they will make
their services more readily available to those who have
a legitimate claim. Secondly, and of equal
importance, a regulatory mechanism offers the potential
for more effective controls on abuse. We expect that
the availability of prior authorization will tend to channel
cases of assisted suicide and voluntary active euthanasia
through the regulatory system so we can get a better
sense of what is actually happening in society. As long
as the threat of prosecution exists, these practices
are likely to continue to be secretive, with all the attendant
difficulties in gathering evidence about and prosecuting
those who go beyond the legitimate boundaries on suicide
assistance and voluntary active euthanasia.

Aside from the design of the system of prior authorization
itself, most of the considerations that have to be addressed
in the context of a regulatory system are also relevant
to the design of a criminal defense. In other words,
even if the federal government decided to create
a defense to criminal prosecution rather than a
regulatory apparatus to deal with assisted
suicide and voluntary active euthanasia, the
decisions on the proper limits to the defense
will force the government to address most of the
questions that we raise as issues to be
addressed in the design of a regulatory scheme.
Accordingly, we will not attempt to canvass
these issues here, but will do so in the context
of our discussion of a regulatory scheme.

As
we noted above, a system of prior authorization for certain
forms of suicide assistance and voluntary active euthanasia
provides the most effective vehicle for achieving the
twin goals of recognizing the legitimacy of the demand of
some people for access to these end-of-life options
and for restricting abuse, particularly of those who might
be especially vulnerable. Here we will outline the framework
of questions that need to be addressed in designing such
a regulatory scheme. The regulatory scheme must
address the following questions at a level of
principle:

a.

Who is eligible to ask for assistance in
suicide or voluntary active
euthanasia? Should we impose
qualifications such as requiring that
the person be terminally ill, that the
person be in severe pain, that
the person be physically incapacitated
and thus unable to take action to end
his or her own life, etc.?

b.

How do we determine voluntariness? What
measures are needed to ensure that those
who are vulnerable are not subjected to
improper influences in deciding to
end their own lives?

c.

Who should be allowed to provide suicide
assistance or voluntary active
euthanasia? Should we restrict the
practice to those who, because of their
medical training, are in a position to
ensure that death will be swift and
painless?

d.

What mechanisms should be put in place
for ensuring that the necessary
conditions are met before steps are
taken to end a person's life?

The question of who
qualifies for assisted suicide and active voluntary euthanasia
is perhaps the most critical issue to be addressed. If the question were to be settled simply by determining
who has a good reason for death, access to these practices
should be widely liberalized. Life cannot be regarded
as an unconditional good, but rather as something which
is valuable only if one has the possibility of wanted experiences.
If a person cannot have any wanted experiences, or if continuing
to live requires unwanted experiences which overbalance
the wanted experiences, then that person has a good reason
to die. The class of patients who have a good reason
to die would include those who have non-terminal and even
curable impairments, either physical or mental, and would
include the young and the incompetent as well as the adult
and competent.

However, we cannot settle the
question of who should be eligible for aid-in-dying simply
by settling the question of who has a good reason for
death. In considering legislation in this area, we must
also take into account the very real potential for mistakes
and abuse, and these increase dramatically the more
eligibility is liberalized. For example, to allow assisted
suicide and active voluntary euthanasia on children or those
with a mental illness significantly increases the potential
for abuse. We thus find ourselves pushed to a
liberal answer by considering who has a good
reason to end their life, and to a conservative
answer by considering the potential for abuses
and mistakes. Below are some of the issues which
need to be considered when deciding who is
eligible.

I.

Must
Death
Be Imminent?

Some proposals restrict eligibility
to those whose prognosis is for imminent death (say, within
six months). This minimizes the consequences of abuse and
mistakes, for the obvious reason that the patient would
have died soon anyway. However, there are problems
with creating such an eligibility
requirement. It is often difficult for
physicians to provide an
accurate prognosis regarding how long
the patient has left to live. The
restriction seems arbitrary since it is
not clear why the remoteness of death
should be a determining factor. And it
would exclude persons with incurable,
but not imminently terminal,
progressive illnesses. The perpetual
suffering of persons who are not close
to death may be of even greater
consequence than that of persons whose
death is imminent.

II.

Must the
Condition Be Terminal?

Several proposals restrict eligibility to those with
a terminal illness. Such a restriction removes the problematic
six-month limitation, but retains some of the appearance
of limiting the negative consequences of mistakes and abuses
(i.e., the disease will kill the person sooner or later). It
is not clear why a person with an
illness that is not terminal ought to be
barred from access to aid-in-dying.
Non-terminal illnesses such as
Alzheimer's can lead to virtual total
impairment of mental or physical
capacities, and can progress to a
point where the patient can no longer
end their life in a dignified and
peaceful way without assistance, even
though death from the disease may not be
inevitable. Quadriplegia is another such
condition. If the reasons for allowing
aid-in-dying rest on the patient's
judgment that their life is no longer
worth living, and if there is no
significant increase in the potential
for abuse or mistakes attached to such
medical conditions, it is questionable
why such a limitation should be placed
on patient's access to aid-in-dying.

III.

Must the
Condition Be Incurable
or Irreversible?

There is a plain and obvious
reason why this should be a condition of access to aid-in-dying:
if the condition which is producing the suffering can
be cured or reversed, the patient's reason for preferring
death to life will likely disappear. However,
there may occur circumstances where, in the patient's view,
the cure is worse than the disease. The treatment may be
of doubtful efficacy, prolonged, painful, and have
such serious side effects that it would not be unreasonable
for the patient to prefer death to living with the
condition untreated or suffering through the treatment with
no guarantee of success. A requirement for counseling,
and consultation with another physician, would address most
of the concern that allowing access by such persons to assistance
in dying would increase the potential for abuse or mistakes.
To argue otherwise, evidence of an increased likelihood
of abuse or mistakes would need to be produced in order
for the presumption of honoring patient autonomy to be overridden.

A point needs to be made here: the more one liberalizes
access to aid-in-dying, the greater the number of patients
who will seek assistance, and the sheer number of these
will inevitably increase the number of abuses and mistakes.
But this should not by itself be sufficient to restrict
access. For example, if the likelihood of abuse for
patients with terminal illnesses is 1%
and the likelihood of abuse for patients
with non-terminal but incurable illness
is 1%, then a further reason must be
presented in order to exclude the
latter, despite the fact that including
the latter will inevitably increase the
number of abuses and mistakes.

IV.

Must
Intolerable
Pain Be Present?

We naturally think of
intolerable physical pain as a paradigm for access to aid-in-dying
since its presence clearly makes continuing to live
a burden, and it is to some extent verifiable, thus apparently
providing a more objective standard. Some proposals include pain
as a criterion. Yet there is an inherent problem
in including pain as a criterion. It is not only difficult
to measure pain, but especially difficult to measure
"intolerable" pain, or pain "so great that its elimination
would render the patient unconscious". Patients' reaction
to pain is highly individual and subjective, and descriptions
of pain ("intolerable" or "unbearable") admit of no objective
standards. Moreover, it is not obvious why
physical pain should be a standard at all. The distress
that some patients experience as their mental and physical
capacities decay, the indignities caused by the loss of
bodily functions and the insertion into their bodies of medical
appliances, the terror of breathlessness or uncontrolled
vomiting, and so on are mental states worthy of recognition
in this matter, as much so as pain whose cause is physical
in origin. Some proposals include technological
dependence as a criterion. Here, a patient whose prognosis
involves continued reliance on the administration of
life-sustaining treatment without any reasonable expectation
of living without that treatment would qualify for aid-in-dying.
It needs to be shown why the hopelessness, distress and
indignity that such a life can bring should not bring the patient
within the scope of this legislation. It is
important to remember that in limiting
legal space for aid-in-dying, the
government is not be in the business of
characterizing certain lives as not
worth living and others as worth living.
The task in legislating in this area is
to provide legal space for aid-in-dying
to those whose own view of their lives
is that life is not worth living, and
who may need assistance in ending an
intolerable existence. There will be
many who qualify for aid-in-dying but
who have no wish to end their lives. The
criteria should not reflect society's
view of whether a such a life is worth
living, but rather should reflect the
point past which the potential for
mistakes and abuse overrides the
presumption that it should be up to the
patient to make such a momentous
decision.

V.

Need the Patient Be Physically
Incapacitated?

What is contemplated in such legislation is provision
for assisted suicide and active voluntary euthanasia for
those patients who are unable to avail themselves of
the means to end their lives in an easy and painless manner. In this regard we normally think of patients who are
physically incapacitated to the point where they cannot
swallow a pill or inject themselves. However, the question
arises whether other patients should have access to these
practices. It is equally against the law to intentionally
supply persons with the means to kill themselves, even where
the persons are unable to obtain those means by themselves.
One thinks here of bedridden patients who could swallow
a pill if they could obtain one, but cannot obtain one by
themselves. The argument is that it would be unfair to such
patients to legally bar them from having someone assist
them by supplying the means to commit suicide while
at the same time making legal space for incapacitated patients
to have assistance in dying. There would
likely be an enormous increase in abuses
and mistakes if anyone could legally
supply a person with the means to commit
suicide. However, if the practice was
restricted to physicians, and if the
procedural requirements applicable to
incapacitated patients were applied in
these cases, there is little reason to
think that the potential for abuse or
mistakes would be any greater in the
cases at hand. If such patients are to
be barred from aid-in-dying, the
evidence for increased potential for
abuse or mistakes needs to be presented.

In discussing the
creation of legal space for assisted suicide and active
voluntary euthanasia, we cannot emphasize too strongly that
we are speaking of situations where people themselves have
chosen to end their lives. In our view, the most significant concern
that policy makers need to address in opening up access
to assisted suicide and active voluntary euthanasia is the possibility
that the choice of death is not a voluntary one, whether
because of improper pressure being placed on the patient
or for any other reason. We consider this
issue in our discussion of procedural
requirements, and in particular in the context
of possible requirements for a waiting period
and patient counseling. The requirement of
voluntariness gives rise not only to issues of
undue influence, but also to issues of
competence. In our view, a choice cannot be said
to be voluntary in any meaningful sense unless
it is made by someone whom we are prepared to
recognize as having the capacity to understand
the nature and consequences of the choice. A
regulatory scheme must therefore address the
issue of competence to make such a choice.

I.

Competence

Most proposals limit access to the competent. If patients are not competent to make treatment decisions
for themselves, they require a substitute decision maker
to make treatment decisions for them, or to confirm
such decisions. To make legal space for the incompetent
to choose aid-in-dying is then to place the decision
to live or die in the hands of the substitute decision maker.
Such a provision would substantially increase the potential
for abuse and mistakes. Not allowing the
incompetent access to aid-in-dying will
result in some patients being forced to
continue living hopeless, painful lives
which they may not want to continue.
Patients do not suffer any the less for
being unable to make treatment
decisions. However strong the
presumption is in favor of competent
patients determining when to end their
lives, a presumption of the
same strength applies to the
incompetent. The question is whether the
increased potential for abuse and
mistakes is enough to outweigh that
presumption. The drafters of most
proposals have concluded that it is, and
we would strongly endorse this view.

II.

Determination of Competence

If competence
is regarded as a necessary condition for access to aid-in-dying,
the question arises whether the legislation should set
out the manner in which is to be determined. Many proposals
include such a provision. Among the proposals are: that
a mental health evaluation be conducted; that a skilled
counselor (in conjunction with the attending physician)
assess competency; that where there is a question about
the competence of a patient, it should be resolved by a
psychiatrist; and that the attending physician determines
competence. Under "normal" conditions, competency
is left up to the attending physician to decide. However,
where aid-in-dying has been requested, the conditions are
often not "normal": the patient may be near the end of a
long series of invasive or painful treatment, under heavy
doses of pain medication, and potentially clinically depressed.
It is difficult in such circumstances to make an accurate
assessment of the patient's competency. A provision
for the opinion of a mental health professional has distinct
advantages. Such a professional will be skilled is assessing competence,
and bring an objective view to the assessment, thus lowering
the risk that the patient has made the request during a period
of temporary, treatable depression. The attending physician
may be inexperienced in the diagnosis and treatment of depression.

On the other hand, there will be circumstances where
there is no doubt that the patient is competent, and the
injection into the process of a mental health evaluation
is costly, and may unnecessarily lengthen the time during
which the patient must suffer. In addition, the assessment
of competence and even of clinical depression in difficult
circumstances is not an exact science, so the gain
in accuracy may be marginal. Even without special skills,
the attending physician (who will likely have spent considerable time
with the patient) may often be in the best position to make
such an assessment. The decision whether to require
an independent assessment of competency
is a difficult one. If it is left to the
physician to request an independent
assessment when he or she is unsure, the
risk is that some incompetent patients
may receive aid-in-dying. If
an independent assessment is mandatory,
the risk is that some, perhaps many,
competent patient's agony will be
unnecessarily prolonged.

III.

Should
Access Be Restricted to Adults?

Most proposals restrict access to adults. While this
restriction may preclude otherwise compelling requests for
assisted death, the vulnerability of children as a class
points in favor of their being protected from abuse. On the other hand, it is not obvious why age by itself
should be a criterion. Patients who are 17 or 15 or even
13 years of age are allowed some degree of control
over treatment decisions, and they may equally be as competent
as any adult to understand the nature and consequences
of a request for aid-in-dying. Certainly they do not suffer
any the less. A strong argument can be made that some
age limit must be set (no seven-year old should be allowed
to make such a decision), but it is at least questionable whether
the age of majority is the appropriate legal limit. One
alternative would be to require that the
patient be competent, then specify that
those under a certain age (say, 17)
are presumed not to be competent. A
decision of incompetence based on this
age limit could then be appealed in the
courts.

IV.

Challenges
to Ineligibility

Provision could
be made in the legislation for a patient
to challenge a decision either by the
physician or by a review panel that
he or she is ineligible for
aid-in-dying. Although the initial
appeal of a physician's decision could
be to a review panel, it makes sense
that the patient ultimately have access
to the courts for a review of the
decision. Such an appeal should probably
be on the facts.

Most legislative
proposals restrict the practice of euthanasia to physicians.
Such a restriction has important benefits to the patient and
to others. Physicians have the expertise to assure a painless,
dignified death. In addition, physicians would inevitably
be involved in the procedural safeguards necessary
for a defensible practice. These include seeing that the
patient is informed about their condition, prognosis
and possible treatments, and ensuring that all possible
steps have been taken to improve the quality of the
patient's life. Open discussion and involvement with a physician
may also bring to light other options. One necessary protection
against abuse of the practice is to limit the persons given
authority to perform it, so that they can be held accountable for
their exercise of that authority. Physicians are an appropriate
group of persons to whom the practice may be restricted.

Some proposals further limit the practice to those physicians
who are specially trained and certified in administering
aid-in-dying. This would create a new "specialty" of
physicians who are skilled in relieving suffering and, when
necessary, terminating life painlessly. It would have
the advantage that patients would avoid being shuffled from
physician to physician trying to find one who is willing
to assist in death. Some might regard the specialty as "ghoulish"
or as transforming aid-in-dying into a "factory-like" practice.
It is suggested that this is an issue that need not be addressed
in legislation, but could be left to the medical profession.

Other proposals limit aid-in-dying to the practicing
physician who is currently responsible for the patient's
care. This assures that the person administering aid-in-dying
knows most about the patient and his or her condition, and
that the practice would be carried out in the context
of a meaningful doctor-patient relationship. However, it
has the distinct disadvantage that the attending physician may
be opposed to physician-assisted death, and could preclude
some patients from being able to access a legal and desperately wanted
medical treatment.

Finally, there are proposals
which would allow persons other than physicians to administer
aid-in-dying, so long as they act under the supervision
of a physician. This would give patients greater control
over their own death. However, it has two major disadvantages.
Those administering aid-in-dying might not have the knowledge
or skill to do so properly, and this could lead to botched
attempts. And by widening the number of persons administering
aid-in dying, it increases the difficulty of effectively monitoring
and regulating the practice.

Whichever proposal
is accepted, physicians are going to be involved in the
process. This raises the problem of those physicians who
on grounds of conscience oppose the practice. Under current
law, and under the medical profession's Code of Ethics,
no physician is required to perform any medical procedure
to which they are opposed either for ethical or medical
reasons. It is clear that such a liberty ought to be
extended to aid-in-dying procedures. If doing so requires
legislative stipulation, it should be so stipulated.

But
then the problem of patients' access to
aid-in-dying is raised, since an attending
physician may be opposed on grounds
of conscience to the procedure, and may refuse a
patient's request for assistance in ending their
life. One suggestion would be not to limit
aid-in-dying to the attending physician, and to
stipulate in the legislation that when an
attending physician who is opposed on grounds of
conscience to aid-in-dying receives a request
for aid-in-dying, the physician must refer the
patient to another physician who is not opposed
to such a procedure. Another suggestion would be
simply to limit aid-in-dying to physicians, and
then leave regulation of this matter up to the
medical community.

Most proposals
contain a requirement that there be a stipulated form for
requests for aid-in-dying, and that patients sign this form in
the presence of witnesses. There is much to be said
for such a form being incorporated in the legislation. This
would ensure that the substance of the formal request for
aid-in-dying, and so the protections offered both to patients
and to physicians, would reflect the government's concerns in
this matter and be standard across the country. Provision
could be made for patients who are physically incapable
of signing such a form. One suggestion is that patients
may designate third parties to sign the forms for them,
where the designation and the signing are carried out
in the presence of the same witnesses. Some
proposals also require that the two witnesses to the signing
of a form of request for aid-in-dying be "independent"
or "disinterested". This requirement is intended
to lower the potential for undue influence or subtle coercion
on the part of family members or others who may be affected
by the patients' death, or who may have too close a relationship
with the physicians. It has been suggested that
disinterested means a person "not related by
blood or marriage and who will receive no
portion of the patient's estate upon the
patient's death."

"Independent" has
been taken to mean that a witness may not be
(1) related to the declarant by
blood or marriage; (2) entitled
to any part of the estate of the declarant;
(3) directly, financially
responsible for the declarant's medical care,
and (4) the
attending physician, or an employee of the
attending physician, or an employee of a health
care facility in which the declarant is a
patient. The problem of knowing who will receive
a portion of a patient's estate could perhaps be
overcome by having the witnesses sign
a declaration as to their independent or
disinterested status, which includes "to the
best of my knowledge, I will not receive
any portion of the patient's estate."

It is probably best
that in witnessing the patient's signature, the
witnesses only attest that the signature on the
request for aid-in-dying form is that of the
patient, i.e., that it matches the patient's
name. It would likely be unduly onerous for the
witnesses to have to satisfy themselves that the
patient is of sound mind, not under duress or
undue influence, and so on. In any case,
they would not often have the expertise to make
such a determination in any meaningful manner.
But if that is all they are attesting to, it is
questionable whether they need to be either
"disinterested" or "independent" as these are
defined above.

A waiting period
between the time of the request and the time of
the procedure is sometimes recommended in order
to ensure that patients have not decided too
quickly that they want to die. Such a
requirement seeks to confirm that the request is
not a transient product of depression, of
impulse, or of judgment distorted by pain. Any such requirement
must strike a balance between the need to ensure that the
request flows from a firm decision, and the need not
to unnecessarily prolong suffering. One option is to require
a specified time period between the signing of the request
form and the administration of aid-in-dying, say 30
days. Another is to require that the patient "clearly and
repeatedly" request to die. A third is to specify no
such time period or sign of a firm decision, once the other
requirements of the legislation have been met.

The
advantage of the first option is that patients do not have
to keep on asking for death; rather they simply have to
show no indication that they have changed their minds.
The requirement for repeatedly asking for death sets up
an artificial situation where patients would have to
be informed that this is a requirement, and the requests
would flow from the patients' knowledge of the requirement.
On the other hand, a specified waiting period risks putting
patients through unnecessary suffering when their decision
has been firm from the time of the request. The third option,
which specifies no waiting period, answers both these problems,
but takes no notice of the possibility that patients
might, if given time, hesitate or change their minds.

There is probably no perfect solution to this
problem. The government should remember that a
requirement for counseling of patients will have
addressed the question of whether there is a
firm and settled desire for death, and there
should be a clear specification that if at any
time up to the last moment a patient wavers, the
procedure is suspended. Beyond these
safeguards, any waiting period of more than a
few days would likely result in unnecessary
suffering. Given enough time, any patient may
waver regarding such a momentous decision, but
that does not show that a quick death was a
mistake. Patient autonomy, and the terrible toll
of such suffering, bear much weight.

Although
it is assumed that as part of their professional responsibilities
attending physicians will have discussed the patient's diagnosis,
prognosis and options for relieving pain and discomfort
with the patient and the patient's family, there is much
to be said for including in the legislation a requirement
for patient and family counseling prior to a signed request
for death becoming valid. It might be appropriate for
there to be a stipulation that counseling include discussion
of the patient feeling themselves to be a burden to
others, and any pressure that they feel from others to access
the aid-in-dying option. It is in our view
fundamental to the legality of assisted suicide
and active voluntary euthanasia that the patient
was fully informed of all the factors relevant
to a decision to request assistance in dying and
that they were capable of understanding and
appreciating these. There should be no doubt in
a physician's mind what the legal requirements
are regarding an informed decision to
request death, and the best way to ensure this
is to set it out in the legislation. Where the
patient has no family members involved
in treatment decisions, their absence should be
noted by the physician in the documentation.

Many proposals require that the attending physician
consult with another physician to confirm the diagnosis
and prognosis, although some require only that consultation
take place when the attending physician is uncertain about
the patient's condition or prognosis. There
is a pronounced advantage to a requirement for consultation
in all cases. One of the concerns expressed by the majority
of objectors to legalizing these practices is the potential
for a misdiagnosis or prognosis. An unnecessary death is
irreversible and a tragedy. Further, there is no question
but that most patients and their loved ones would want to
be as certain as possible that a diagnosis of a terminal
illness is correct. The concern here is not unreasonable.
The legislation might include a requirement that the
physician consulted be independent (i.e., not a colleague
of the attending physician and not previously involved in
the patient's care.), that he or she conduct their own examination
of the patient, and certify in writing that the diagnosis
and prognosis are confirmed. This would address the concern
that it might be too easy to find a "complaisant" colleague
who merely "approves" the diagnosis as a formality.
The legislation might also require that the consulted physician
be experienced in the area of the diagnosis. The
disadvantage of such a requirement is that there
are time and cost factors involved in having
another physician examine the patient. In some
cases a second opinion might have already been
obtained. In others, especially in the final
stages of an illness, there may be no real
question about the nature and course of the
illness.

Many proposals
require that an aid-in-dying request be submitted to a panel
for review, such as an Aid-In-Dying Board, a tribunal, or
a hospital Ethics Committee. Others provide for a review
only when the physician feels it necessary. And amongst
these proposals there is disagreement as to whether
the panel or Board should have the power to veto a patient's
request for aid-in-dying, or rather simply assure that
all procedural requirements have been met. It has been suggested
that membership in such panels or Boards should consist
of representatives from a cross-section of professional
backgrounds, and include a representative from the field
of ethics or civil liberties. This proposal flows
from the view that independent review before the assisted
death is carried out is an essential safeguard against wrongdoing
or possible errors in judgment. Errors here can have tragic
and irreversible results. Moreover, there is a need to ensure the
integrity of the process of aid-in-dying, given the concern
about it which has been expressed in some quarters.

The difficulty with such a proposal is that administrative
delays and obstruction may result from the institutional
inertia of requiring a procedural review. Moreover,
the physician will be well aware of their professional obligations,
and of the necessity to satisfy all procedural requirements
(on pain of a Criminal Code charge). As a result, there
is little likelihood that these would not be satisfied. A
requirement that the attending physician submit all documentation
to the Coroner's Office would further ensure that all procedural requirements
were met.

Another difficulty is that, given
legal liability, even a procedural review by a Board may
in practice result in the Board having veto power.
An alternative proposal which could answer this concern
would be to require the physician to go over the procedural requirements
in a case conference with members from a hospital's ethics
committee. There is also a concern that aid-in-dying
is essentially a matter between the patient and his or her
physician, and should not be open to review by any
panel or Board, whose members will have had no contact with
the patient, and who may well reflect the biases of
their respective disciplines rather than the interests of
the patient and the community at large. Thus, a procedural
review may not be necessary, and a substantive review
would not be welcome.

In deciding this
issue, the government will have to address two
issues. Is it proper for a review panel to have
the authority to approve or reject on
substantive grounds an application for
aid-in-dying - that is, to second guess a
patient's decision made in consultation with
their physician? And does the need to ensure the
integrity of the process outweigh the concern
that a review on procedural grounds is both
unnecessary and poses a risk of undue delays?
Provision for a strict time limit (say, five
days) could partially answer the second concern,
and address the concern raised in Objection 6.

Some proposals stipulate conditions for the method to
be used in aid-in-dying. For example, one proposal stipulates
that the method must be the least active possible.
Others stipulate that it may be any method which will terminate
the life swiftly, painlessly and humanely. Some place
the control of the method in the hands of the patient, others
in the hands of the physician. It is unclear why
the activeness of the method is thought to be
relevant to the decision. If the method needs to
be characterized in the legislation at all, it
should be characterized in terms of the case for
aid-in-dying - that is, the one producing the
easiest and most dignified death. There is much
to be said for the choice of the method being
placed in the hands of the patient. What
is important is which method is "easiest" and
"most dignified" in the eyes of the patient. If
the method chosen by the patient is
not acceptable to the physician, the physician
always has the option not to administer the
treatment. There is also much to be said
for leaving this issue out of any legislation,
and consider it as a matter best dealt with by
the medical profession.

Some
proposals contain stringent requirements for documentation
and reporting by the physician in order to provide for a continuous
monitoring of the practice, and as an additional check to
safeguard against mistakes and abuses. For
example, the Netherlands requires that the physician maintain
records of the patient's request, the patient's condition,
counseling, the findings of the Aid-in-Dying Board, the
name of the physician providing aid-in-dying, and the date
and time of aid-in-dying. In addition, the physician
must submit a report with supporting documents to the Coroner,
who must review the report, determine the cause of
death, and present a follow-up report to the Attorney General's
office. Documentation and reporting requirements are
important. They can provide for a review of the
physician's conduct in the individual case, and
provide the information for continuous study of
the practice. We can see no good reason for
excluding such requirements from the
legislation.

Issues surrounding end
of life decisions have become a persistent feature of the
American political landscape. Public opinion is now
ready to grapple with these issues, and an open and frank
discussion of the promise and problems surrounding the end
of life now lies at the doorstep of the federal government,
regardless of the political stripe of the party in power. The threshold issue of whether to permit aid-in-dying
at all will require religious and secular perspectives and
a thorough review of the personal and professional
issues, both for those seeking aid-in-dying and the professionals
involved in the care of those who seek aid-in-dying.
An effective and functional policy on these issues cannot
evolve without some degree of consensus amongst the many
voices in our society affected by such profoundly personal
matters. Our own perspective on the threshold
issue of whether or not to allow aid-in-dying is clearly
on the side of personal autonomy for the individual
facing death. Practical policy constraints arise when one
considers who should be eligible, how, and under what circumstances.
The state must impose some reasonable constraints on eligibility
and upon those performing the acts which result in
the death of another. But once the state permits aid-in-dying,
it has an obligation to ensure that such deaths will be
timely, painless and with minimum anxiety arising from
bureaucratic process. The state must ensure that the person
requesting death is indeed an appropriate candidate,
but once that is established, the state surely has an obligation
to respect that wish for early death, rather than to
encumber these most vulnerable and helpless people with
red tape and administrative delay.

A functional
regime for the regulation of assisted suicide and voluntary
euthanasia will require that individuals be screened for eligibility
in a timely and compassionate fashion, that they have the
services of an appropriately skilled physician available
for effective assistance in dying, and that there be
effective reporting and monitoring of such deaths. Monitoring
is essential to provide assurances that abuses of the
option for early death are minimal, that appropriate process
is followed, and that inappropriate actions by families,
care givers and the state itself are properly controlled,
penalized or ended.

Once such a framework is
in place, it must be well publicized. The goal of all of
these policy building efforts must be to ensure that everyone,
both lay and professional, have confidence that they can
come to the end of life knowing what the rules are - and
that they may therefore face death with less fear,
knowing that a compassionate and reasonable approach to
end of life decisions is available to them.